Case law update

Criminal law

City of Urbana v. Andrew N.B., No. 95408, 95803 cons. (June 24, 2004)

Appellate court erred when it approved of trial court's use of contempt petition to order detention of minor defendants in response to violation of terms of court supervision imposed as result of guilty plea to municipal ordinance. Court improperly used contempt petition to avoid protections of Juvenile Court Act of 1987 and expanded potential disposition beyond that which was available for original offense.

People v. Arndt, No. 2-03-0660 (2nd Dist., August 18, 2004)

Evidence, consisting of contents of chat room conversations between defendant and police officer posing as a 16-year-old child, was sufficient to convict defendant of indecent solicitation. Further, other Internet conversations with persons claiming to be under age by defendant established that defendant was not entrapped by police officer. Section 11-6 of the Criminal Code of 1961 (720 ILCS 5/11-6 (West 2002)) is not unconstitutionally overbroad and did not infringe on defendant's 1st amendment rights. Moreover, the variance between the indictment and the evidence presented at trial did not mislead defendant in presenting his defense.

People v. Ceja, No. 3-03-0950 (3rd Dist., July 30, 2004)

Recording of field sobriety test taken by malfunctioning videotape recorder resulting in only audio portion on tape was properly suppressed pursuant to the eavesdropping article of the Criminal Code of 1961 (Code) because recording requires accompanying video in order to qualify for exception contained in section 14-3(h) of the Code (720 ILCS 5/14-3(h) (West 2002)), and recording did not fit within the emergency communication exception of section 14-3(d) of the Code (720 ILCS 5/14-3(d) (West 2002)).

People v. Taylor, No. 2-03-0138 (2nd Dist., June 30, 2004).

The use of vulgar or indecent language in a telephone call is insufficient to infer an intent to harass. Therefore, evidence was insufficient to convict defendant of violating the Harassing and Obscene Communications Act (720 ILCS 135/1-1(2) (West 2002)).

Criminal counsel

People v. Spooner-Tye, No. 2-02-0522, 2-02-0523, 2-02-0524, 2-02-0525 cons. (2nd Dist., June 30, 2004)

Supreme Court Rule 604(d) certification filed by defense counsel, prior to filing amended motion to withdraw guilty plea to misdemeanor charges, is adequate despite counsel's inability to review guilty plea transcripts or an equivalent. Supreme Court Rule 402(e) and Rule 604(d), when read together, do not require that a transcript be prepared at the expense of the State, in order to satisfy effective assistance of counsel requirement for motion to withdraw guilty plea.

People v. Junior, No. 4-02-0334 (4th Dist., June 25, 2004).

In defendant's trial for burglary, trial court committed reversible error when it allowed State's witness to testify that the only reason he was testifying was because he was subpoenaed, when in fact, witness was required to cooperate with the State as a condition of the plea agreement in which the State agreed not to seek consecutive sentencing. Further, State's Attorney, in closing argument, compounded error by claiming witness had "no reason to lie."

Criminal sentencing

People v. Dryden, No. 2-02-0999 (2nd Dist., June 8, 2004)

Although evidence of intent was sufficient to convict defendant of home invasion (720 ILCS 5/12-11(a)(3) (West 2000)), 15-year enhancement because of possession of firearm (720 ILCS 5/12-11(c) (West 2000)) violates proportionate penalties clause of the Illinois Constitution of 1970 (Ill. Const. 1970, art. I, sec. 11) because it punishes more severely than aggravated battery with a firearm. In addition, count of home invasion based on accountability for accomplices must be vacated because of one-act, one-crime rule.

In re M.T., No. 1-01-2314 (1st Dist., August 27, 2004)

Because it treats nonviolent crime as seriously as violent crime, indecent-solicitation-of-an-adult statute (720 ILCS 5/11-6.5(a)(1)(ii) (West 2000)) violates proportionate penalties clause of the Illinois Constitution of 1970 (Ill. Const. 1970, art. I, sec. 11). The sentencing provisions of the indecent-solicitation-of-an-adult statute is so pervasive that it renders entire statute unconstitutional in its entirety.

People v. Collins, No. 1-03-0685, 1-03-0686 cons. (1st Dist., August 25, 2004)

Pursuant to clemency order issued by Governor commuting death penalty from defendant's sentence and authorizing court to impose maximum sentence for offense other than death, trial court was not required to conduct new sentencing hearing, but was authorized to order defendant remanded to Department of Corrections to serve term of natural life sentence.

Freedom of Information Act

The Southern Illinoisan v. Department of Public Health, No. 5-02-0836 (5th Dist., June 9, 2004)

Trial court's determination that requested records of the Illinois Department of Public Health from cancer registry do not present substantial risk of disclosure of individual identity and order of disclosure is proper. Testimony of expert witness in data anonymity of her ability to correctly identify the subjects of 18 of 20 sets of data provided by defendant reveals unique knowledge and expertise and is insufficient to conclude that the release of the data reasonably tends to lead to the identify of the specific individuals. Further, because refusal to release data was not unreasonable, court properly declined to award attorney fees.

Labor law

Garrido v. Cook County Sheriff's Merit Board, No. 1-03-1128 (1st Dist., June 9, 2004)

Because drug-free workplace policy of the sheriff's office, when applied to employee who consumed tea recommended by physician in Peru and who did not realize that it contained coca leaves, bears no rational relationship to legitimate goals of employer, discharge of plaintiff for testing positive for cocaine in random urine test violates her substantive due process rights.

County of Cook v. Illinois Labor Relations Board, No. 1-03-1622 (1st Dist., July 28, 2004)

Findings of the Local Panel of the Illinois Labor Relations Board that attending rehabilitation physicians qualify for collective bargaining because they are not managerial employees within meaning of section 3(j) of the Illinois Labor Relations Act (5 ILCS 315/3(j) (West 2002)) is not clearly erroneous. Evidence established that the attending rehabilitation physicians' roles in committee meetings was neither final nor independent and did not comprise a predominant part of their activity and that their authority to direct and recommend discipline of residents does not qualify them as supervisors.

Municipal law

West Belmont, L.L.C. v. City of Chicago, No. 1-03-1199 (1st Dist., June 1, 2004)

Purchaser of property, formerly used as furniture store, who intended to construct townhomes, was not entitled to exemption from municipal transfer tax provided in city ordinance for real property "used primarily for commercial or industrial purposes." A residential real estate development does not fall within the provisions of the city's ordinance.

People v. Suburban Cook County Tuberculosis Sanitarium District, No. 1-03-2815 (1st Dist., June 30, 2004)

Because tuberculosis sanitarium district is not closing its entire facility, and because the provisions of Tuberculosis Sanitarium District Act (70 ILCS 920/3, 5 (West 2000)) give the district the authority to dispose of unneeded real property, the district's authority to dispose of 241⁄2 acres of a 36-acre parcel owned by it in Hinsdale is necessarily incidental to its express powers. Therefore, the district is not required to obtain the approval of the Board of Commissioners of Cook County before selling its property.

School law

Bill v. Board of Education of Cicero School District 99, No. 1-03-2079 (1st Dist., June 28, 2004)

Trial court erred when it granted plaintiff's motion for summary judgment awarding her damages and attorney fees for wrongful discharge by school district because there is material question of fact whether her complaint is barred by laches, having been filed more than six months after her discharge. However, she did establish that provision in contract declaring it null and void at the end of one year violates provisions of section 24-11 of School Code (105 ILCS 5/24-11 (West 20000)), which require the provision of written notice to a full-time teacher who will not be re-employed. In addition, award of attorney fees was improper because Attorneys Fees in Wage Actions Act (705 ILCS 225/0.01 et seq. (West 2002)) does not apply to discharge actions where no work was performed by employee during disputed period.

Board of Education of Dolton School District 149 v. Miller, No. 1-03-3513 (1st Dist., June 30, 2004)

Absent an agreement or a duty to build walkways or sidewalks, the trial court abused its discretion when it ordered school district to construct sidewalks on land owned by a township road district and adjacent to school property.

Tort immunity and liability

Prostran v. City of Chicago, No. 1-03-0656 (1st Dist., June 11, 2004)

City owed no duty to protect visually impaired pedestrian from open and obvious construction site along her path caused by torn up sidewalk across alley with neither distraction nor deliberate encounter exceptions applying. Further, city was immune from charge of failure to provide barricades or warning signs by virtue of section 3-104 of Local Governmental and Governmental Employees Tort Immunity Act (745 ILCS 10/3-104 (West 2000)).

Cross v. City of Chicago, No. 1-03-0408 (1st Dist., August 30, 2004).

Because sections 2-201 and 2-209 of the Local Governmental and Governmental Employees Tort Immunity Act (745 ILCS 10/2-201, 2-209 (West 2002)) immunize municipal employer from claim for retaliatory discharge by employee who filed Workers' Compensation claim, plaintiff's complaint was properly dismissed by the circuit court.

Kevin's Towing, Inc. v. Thomas, No. 2-03-1118 (2nd Dist., August 18, 2004)

Complaint against mayor of city alleging that she was guilty of tortious interference with contract and abuse of government power when she urged lumber company to hire local towing company in retaliation for incident in which cars were towed during fireworks display was subject to summary dismissal because conduct was discretionary act protected by section 2-201 of Local Governmental and Governmental Employees Tort Immunity Act (745 ILCS 10/2-2-01 (West 2000)).

Peters v. Board of Trustees of Southern Illinois University, No. 5-03-0025 (5th Dist., September 1, 2004)

Because defendant is an arm of the State and because there is no statutory authority for review under the Administrative Review Law (735 ILCS 5/3-101 et seq. (West 2000)), the circuit court lacked subject matter jurisdiction to transfer venue to a different county or to transfer case to Court of Claims, where review properly belongs, of university's decision to require all freshman under age 21 who are not living with parents or married to live in university-owned housing. Therefore, the order transferring venue is vacated, and case is dismissed pursuant to Supreme Court Rule 366.

Zoning

Village of Chatham, Illinois v. County of Sangamon, Illinois, No. 4-03-0878 (4th Dist., August 11, 2004)

Trial court's declaration that a municipality had authority to exercise zoning and building-code jurisdiction over unincorporated tract within the statutory zoning authority of the county is correct, because Division 15.1 of the Illinois Municipal Code (65 ILCS 5/11-15.1-1 through 11-15.1-5 (West 2002)) specifically gives a municipality zoning authority over property that is subject to annexation agreement, to the exclusion of the county. Even though property that is subject to the agreement is not adjacent to the municipality, because the Municipal Code enactment is more recent than directly contradictory provision of equally specific provisions of the Counties Code (55 ILCS 5/5-1063 (West 2002)) and other Municipal Code provisions (65 ILCS 5/11-13-1 (West 2002)), the provisions of Division 15.1 of the Municipal Code control. Further, ordinance is not impermissible special legislation and is legitimate exercise of police power.